Madison Park Properties 66 (Pty) Ltd v Top Star Bricks CC and Others (60867/2013) [2015] ZAGPPHC 945 (28 June 2015)

Madison Park Properties 66 (Pty) Ltd v Top Star Bricks CC and Others (60867/2013) [2015] ZAGPPHC 945 (28 June 2015)

The court held that the granting or refusal of an amendment is a discretionary matter, to be exercised judicially. The proposed amendment does not introduce a new cause of action, as the applicant's claim is based on ownership and occupation, not on the existence or termination of a lease. The amended declaration contains all necessary averments to sustain an action for eviction, as established in Chetty v Naidoo. Allegations regarding the lease were not essential and could have been omitted. The amendment will not render the declaration excipiable, nor will it prejudice the respondents in a manner that cannot be compensated by costs. Accordingly, the applicant is entitled to amend its...

Citation
[2015] ZAGPPHC 945
Parties
Applicant: Madison Park Properties 66 (Pty) Ltd; Respondent: Top Star Bricks CC; Respondent: Starcrow 59 CC; Respondent: Somca 93 CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 June 2015
Case Number
60867/2013
Procedural Posture
Civil Application / Application for Amendment of Declaration
Outcome
Application for amendment granted; costs awarded against respondents.
Judges
Hiemstra
Legal Topics
Amendment of Pleadings, Eviction, Rei Vindicatio, Cause of Action, Exception Procedure
Civil Procedure Land and Property Amendment of Pleadings Eviction Rei Vindicatio Cause of Action Exception Procedure

Case Brief

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Parties

Madison Park Properties 66 (Pty) Ltd

Applicant

Top Star Bricks CC

Respondent

Starcrow 59 CC

Respondent

Somca 93 CC

Respondent

Procedural Posture

Civil Application / Application for Amendment of Declaration

Legal Issues

  1. 1 Whether the applicant should be granted leave to amend its declaration.
  2. 2 Whether the proposed amendment introduces a new cause of action.
  3. 3 Whether the amended declaration would be excipiable.

Ratio Decidendi

The court held that the granting or refusal of an amendment is a discretionary matter, to be exercised judicially. The proposed amendment does not introduce a new cause of action, as the applicant's claim is based on ownership and occupation, not on the existence or termination of a lease. The amended declaration contains all necessary averments to sustain an action for eviction, as established in Chetty v Naidoo. Allegations regarding the lease were not essential and could have been omitted. The amendment will not render the declaration excipiable, nor will it prejudice the respondents in a manner that cannot be compensated by costs. Accordingly, the applicant is entitled to amend its...

Court Disposition

Application for amendment granted; costs awarded against respondents.

Orders

  • The applicant is granted leave to amend its declaration as set out in the applicant's Notice of Intention to Amend its Declaration dated 27 June 2014.
  • The respondents are ordered to pay the costs of this application.